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Murugesan vs Vernitha on 30 August, 2018

BEFORE THE MADURAI BENCH OF MADRAS HIGH COURT

DATED: 30.08.2018

CORAM

THE HONOURABLE MR.JUSTICE N.ANAND VENKATESH

Crl.O.P.(MD).No.5579 of 2018
and
Crl.M.P.(MD)Nos.2686 and 2687 of 2018

1.Murugesan
2.Ponnammai
3.Yashoodha
4.Subakaran : Petitioners

Vs.

Vernitha : Respondent

PRAYER : Criminal Original Petition filed under Section 482 of Cr.P.C., to
call for the records pertaining to the charge sheet in private complaint in
C.C.No.222 of 2017 on the file of the learned Judicial Magistrate II,
Nagercoil filed under Sections 200 Cr.P.C and quash the same as illegal as
against the petitioners alone.

!For Petitioners : Mr.T.Lajapathi Roy
^For Respondent : Mr.S.Balaji

:ORDER

This petition has been filed to quash the private complaint in
C.C.No.222 of 2017 on the file of the learned Judicial Magistrate No.II,
Nagercoil.

2.The petitioners are arrayed as A2, A3, A4 and A5 in the complaint.
The first petitioner is the father-in-law, the second petitioner is the
mother-in-law, the third petitioner is the sister-in-law and the fourth
petitioner is the brother-in-law of the respondent.

3.A reading of the complaint reveals that the respondent and the first
accused in the complaint were married on 28.09.2005 under the Hindu Riots and
Customs. Thereafter, a child was born to the respondent. It is seen from the
complaint that the respondent has been living in her parent’s house right
from the fourth month of her pregnancy at Nagercoil. It is the further case
in the complaint that from the year 2007, the husband was working in Dubai
and was sending Rs.5,000/- towards maintenance to the respondent and after
sometime, he stopped sending the maintenance and stopped calling the
respondent and enquiring about the child. While so, in the year 2016, the
respondent attended a function and found that the husband was very close with
the sixth accused person and on enquiry found that the husband had married
the sixth accused person when the first marriage with the respondent was
still in existence. When this was questioned by the respondent, no
responsible answer was given by the petitioners. It is the case of the
respondent in the complaint that the petitioners instead of condemning the
act of the husband, have instigated him to marry the sixth accused person and
therefore, the life of the respondent and her child have become a big
question mark. In the complaint, it is further stated that the respondent
gave a complaint in this regard on 31.01.2017 and after enquiring both
parties, the police have closed the complaint without taking any action.
Therefore, the present private complaint has been filed against all the
accused persons for the offence punishable under Sections 498(A), 494 r/w
Section 34 of I.P.C.

4.The learned counsel for the petitioners would submit that a reading
of the complaint, does not reveal any offence against the petitioners. The
learned counsel would further submit that the in-laws have been
unnecessarily roped in this case, when the real dispute is between the
respondent and her husband and his illegal relationship with the sixth
accused person. The learned counsel would further rely upon the judgment of
the Hon’ble Supreme Court in Bajanlal reported in 1992 supp 1 SCC 335. The
learned counsel would rely upon guidelines 1, 3 and 7 found in the said
judgment and would submit that the present complaint will have to be quashed.

5.Per contra, the learned Counsel appearing for the respondent would
submit that the petitioners had knowledge about the marriage that happened
between the first accused and the sixth accused and in fact the petitioners
had arranged for the said marriage. Therefore, the learned counsel for the
respondent would submit that there is no ground to quash the private
complaint at this stage.

6.This Court has carefully considered the submissions made on either
side.

7.It is seen from the records that initially the respondent has given a
complaint before the police and the same was taken on file in C.S.R.No.34 of
2017. The police had called both the parties and enquired. It is seen from
the closure report given by the All Women Police Station, Nagercoil that the
respondent did not have any contact with the petitioners. The learned counsel
for the respondent would submit that the respondent did not make any such
statement before the police and the police themselves have recorded the said
statement and had filed a closure report. The counsel for the respondent
would submit that it is only for this reason that the respondent proceeded to
file a private complaint against the accused persons.

8. A reading of the entire complaint reveals the fact that the marriage
happened in the year 2005 and the respondent had been living away from the
matrimonial home right from the fourth month of pregnancy. It is also seen
that the husband had left for Duabi in the year 2007 and thereafter, the
respondent had contact with the husband, since she was receiving maintenance
and subsequently such contact was also discontinued. Right from 2007 to 2016,
the respondent had no complaint against the present petitioners in this
Criminal Original Petition. The first cause of action that has been raised in
the complaints in the year 2016 , when the respondent saw her husband along
with other lady, who has been arrayed as A6 in the complaint.

9.According to the respondent, the husband has illegally married the
sixth accused person and thereby has committed an offence of bigamy. The
complaint also reveals certain allegations about the demand of dowry.
However, these complaints pertained to something which happened immediately
after marriage and before the respondent left the matrimonial house when she
was four months pregnant. The only ground on which the respondent has chosen
to rope in in-laws of the husband in this case is on the ground that the in-
laws instead of condemning the act of the husband, encouraged him to live
with the sixth accused.

10.The learned counsel for the respondent would further submit that the
respondent has been left in lurch along with two children and the husband is
continuing to live with another lady by illegally marrying her. Therefore,
the learned counsel would submit that an offence under Section 498(A) and
Section 494 r/w Section 34 of I.P.C has been made out on the allegations
levelled in the complaint.

11.The Hon’ble Supreme Court has time and again expressed displeasure
on the relatives of the husband being roped in as accused in all criminal
cases. The Hon’ble Supreme Court has also gone into the issue in detail and
found that in most of the cases where the complaint is made under Section
498(A) of I.P.C, invariably the in-laws are also being made as accused. It
is true that a poor lady, who has been left in lurch is anxiously struggling
to get justice and is knocking the doors of the court to safeguard herself
and her children. Therefore, it is possible that she has a grievance against
the in-laws. It is also possible that in order to bring the husband to terms,
sometimes the in-laws are also roped in as accused persons in many of the
matrimonial complaints which itself actually delays the disposal of such
cases, since the in-laws immediately approach the High Court seeking for
quashing the proceedings and invariably, this Court entertains the petitions
and stay the proceedings before the court below. Therefore, by unnecessarily
including the in-laws in the complaint, it is only going against the interest
of the wife, since the proceedings are stalled and the husband who will be a
real accused person will directly be a beneficiary in all proceedings, which
are stayed by this court in 482 proceedings.

12.The Hon’ble Supreme court in the judgment in Pinakin Mahipatray
Rawal Vs. State of Gujarat reported in 2013 (10) SCC 48, wherein issue as to
whether an extramarital relationship of a husband with another women will
amount to cruelty as contemplated under Section 498(A) of I.P.C was gone
into. The relevant portions of the judgment in this regard is extracted here
under.

13. Alienation of affection by a stranger, if proved, is an intentional
tort i.e. interference in the marital relationship with intent to alienate
one spouse from the other. Alienation of affection is known as ?Heart Balm?
action. Anglo-Saxon common law on alienation of affection has not much roots
in this country, the law is still in its nascent stage. Anglo- Saxon based
action against third parties involving tortuous interference with the marital
relationship was mainly compensatory in nature which was earlier available to
the husband, but, of late, a wife could also lay such a claim complaining of
alienation of affection. The object is to preserve marital harmony by
deterring wrongful interference, thereby to save the institution of marriage.
Both the spouses have a valuable interest in the married relationship,
including its intimacy, companionship, support, duties, affection, welfare of
children etc.

14. We notice, in this country, if the marital relationship is strained
and if the wife lives separately due to valid reasons, the wife can lay a
claim only for maintenance against the husband and if a third party is
instrumental for disrupting her marriage, by alienating her spouse?s
affection, companionship, including marital obligations, seldom, we find the
disgusted spouse proceeds against the intruder into her matrimonial home.
Possibly, in a given case, she could question the extent, that such injuries
can be adequately compensated, by a monetary award. Such an action, of
course, may not protect a marriage, but it compensates those who have been
harmed.

15. We are, however, of the view that for a successful prosecution of
such an action for alienation of affection, the loss of marital relationship,
companionship, assistance, loss of consortium, etc. as such may not be
sufficient, but there must be clear evidence to show active participation,
initiation or encouragement on the part of a third party that he/she must
have played a substantial part in inducing or causing one spouse?s loss of
other spouse?s affection. Mere acts, association, liking as such do not
become tortuous. Few countries and several States in the United States of
America have passed legislation against bringing in an action for alienation
of affection, due to various reasons, including the difficulties experienced
in assessing the monetary damages and few States have also abolished
?criminal conversation? action as well.

20. We have to examine the correctness or otherwise of the findings
recorded by the trial Court, affirmed by the High Court, as to whether the
alleged relationship between A-1 and A-2 has in any way constituted cruelty
within the meaning of explanation to Section 498A IPC. The facts in this case
have clearly proved that the A-1 has not ill-treated the deceased, either
physically or mentally demanding dowry and was living with A-1, in the
matrimonial home till the date, she committed suicide. Cruelty includes both
physical and mental cruelty for the purpose of Section 498A. Section 498A IPC
reads as under :- …..

23. We are of the view that the mere fact that the husband has
developed some intimacy with another, during the subsistence of marriage and
failed to discharge his marital obligations, as such would not amount to
?cruelty?, but it must be of such a nature as is likely to drive the spouse
to commit suicide to fall within the explanation to Section 498A IPC.
Harassment, of course, need not be in the form of physical assault and even
mental harassment also would come within the purview of Section 498A IPC.
Mental cruelty, of course, varies from person to person, depending upon the
intensity and the degree of endurance, some may meet with courage and some
others suffer in silence, to some it may be unbearable and a weak person may
think of ending one?s life. We, on facts, found that the alleged extra
marital relationship was not of such a nature as to drive the wife to commit
suicide or that A-1 had ever intended or acted in such a manner which under
normal circumstances, would drive the wife to commit suicide.

13. The ratio in the above judgment reveals that the mere fact that
husband has developed some intimacy with another woman, during the
subsistence of marriage and failed to discharge his marital obligations, as
such would not amount to ‘cruelty’, but it must be of such a nature as is
likely to drive the spouse to commit suicide to fall within the Explanation
to Section 498-A I.P.C.

14.Keeping the ratio laid down by the Hon’ble Supreme Court in the
above judgment in mind, in the present case the complaint of the respondent
is that the husband has developed an extramartial relationship with the sixth
accused and is living with her. It is for the respondent to prove in the
course of evidence that such relationship by itself will amount to a cruelty
under Section 498(A). However, for the said relationship of the husband with
the sixth accused, the petitioners who are in-laws, cannot at any rate be
made responsible and cannot be made as accused persons, merely on the ground
that they are aware about the relationship between the husband and the sixth
accused.

15.It is also necessary to refer to the judgment of the Hon’bleSupreme
Court in Preeti Gupta Another vs. State Of Jharkhand Another reported in
2010 (7) SCC 667. In this judgment, the Hon’ble Supreme Court has gone into
the issue as to the manner in which the in-laws namely, the close relatives
of the husband are being roped in as an accused in cases filed under Section
498(A) I.P.C. The relevant paragraphs in the judgment is extracted here
under.

32. It is a matter of common experience that most of these complaints
under section 498-A IPC are filed in the heat of the moment over trivial
issues without proper deliberations. We come across a large number of such
complaints which are not even bona fide and are filed with oblique motive. At
the same time, rapid increase in the number of genuine cases of dowry
harassment are also a matter of serious concern.

33. The learned members of the Bar have enormous social responsibility
and obligation to ensure that the social fiber of family life is not ruined
or demolished. They must ensure that exaggerated versions of small incidents
should not be reflected in the criminal complaints. Majority of the
complaints are filed either on their advice or with their concurrence. The
learned members of the Bar who belong to a noble profession must maintain its
noble traditions and should treat every complaint under section 498-A as a
basic human problem and must make serious endeavour to help the parties in
arriving at an amicable resolution of that human problem. They must discharge
their duties to the best of their abilities to ensure that social fiber,
peace and tranquility of the society remains intact. The members of the Bar
should also ensure that one complaint should not lead to multiple cases.

34. Unfortunately, at the time of filing of the complaint the
implications and consequences are not properly visualized by the complainant
that such complaint can lead to insurmountable harassment, agony and pain to
the complainant, accused and his close relations.

35. The ultimate object of justice is to find out the truth and punish
the guilty and protect the innocent. To find out the truth is a herculean
task in majority of these complaints. The tendency of implicating husband and
all his immediate relations is also not uncommon. At times, even after the
conclusion of criminal trial, it is difficult to ascertain the real truth.
The courts have to be extremely careful and cautious in dealing with these
complaints and must take pragmatic realities into consideration while dealing
with matrimonial cases. The allegations of harassment of husband’s close
relations who had been living in different cities and never visited or rarely
visited the place where the complainant resided would have an entirely
different complexion. The allegations of the complaint are required to be
scrutinized with great care and circumspection.

36.Experience reveals that long and protracted criminal trials lead to
rancour, acrimony and bitterness in the relationship amongst the parties. It
is also a matter of common knowledge that in cases filed by the complainant
if the husband or the husband’s relations had to remain in jail even for a
few days, it would ruin the chances of amicable settlement altogether. The
process of suffering is extremely long and painful.

37. Before parting with this case, we would like to observe that a
serious relook of the entire provision is warranted by the legislation. It is
also a matter of common knowledge that exaggerated versions of the incident
are reflected in a large number of complaints. The tendency of over
implication is also reflected in a very large number of cases. The criminal
trials lead to immense sufferings for all concerned. Even ultimate acquittal
in the trial may also not be able to wipe out the deep scars of suffering of
ignominy. Unfortunately a large number of these complaints have not only
flooded the courts but also have led to enormous social unrest affecting
peace, harmony and happiness of the society. It is high time that the
legislature must take into consideration the pragmatic realities and make
suitable changes in the existing law. It is imperative for the legislature to
take into consideration the informed public opinion and the pragmatic
realities in consideration and make necessary changes in the relevant
provisions of law.

16.It is also relevant to refer to the judgment of the Hon’ble Supreme
Court in Rajesh Sharma and others Vs. State of U.P and another reported in
2017 (4) CTC 667. In this judgment certain directions/guidelines were issued
by the Hon’ble Supreme Court in cases or complaints filed under Section
498(A) I.P.C. The relevant portions of the judgment are extracted here under.

14. Section 498A was inserted in the statute with the laudable object
of punishing cruelty at the hands of husband or his relatives against a wife
particularly when such cruelty had potential to result in suicide or murder
of a woman as mentioned in the Statement of Objects and Reasons of the Act 46
of 1983. The expression ?cruelty? in Section 498A covers conduct which may
drive the women to commit suicide or cause grave injury (mental or physical)
or danger to life or harassment with a view to coerce her to meet unlawful
demand. It is a matter of serious concern that large number of cases continue
to be filed under Section 498A alleging harassment of married women. We have
already referred to some of the statistics from the Crime Records Bureau.
This Court had earlier noticed the fact that most of such complaints are
filed in the heat of the moment over trivial issues. Many of such complaints
are not bona fide. At the time of filing of the complaint, implications and
consequences are not visualized. At times such complaints lead to uncalled
for harassment not only to the accused but also to the complainant. Uncalled
for arrest may ruin the chances of settlement. This Court had earlier
observed that a serious review of the provision was warranted.

The matter also appears to have been considered by the Law Commission,
the Malimath Committee, the Committee on Petitions in the Rajya Sabha, the
Home Ministry, which have been referred to in the earlier part of the
Judgment. The abuse of the provision was also noted in the judgments of this
Court referred to earlier. Some High Courts have issued directions to check
such abuse. In Arnesh Kumar (supra) this Court gave directions to safeguard
uncalled for arrests. Recommendation has also been made by the Law Commission
to make the offence compoundable.

15. Following areas appear to require remedial steps :-

i) Uncalled for implication of husband and his relatives and arrest.

ii)Continuation of proceedings in spite of settlement between
the parties since the offence is non-compoundable and uncalled for hardship
to parties on that account.

16. Function of this Court is not to legislate but only to interpret
the law. No doubt in doing so laying down of norms is sometimes unavoidable.
Just and fair procedure being part of fundamental right to life,
interpretation is required to be placed on a penal provision so that its
working is not unjust, unfair or unreasonable. The court has incidental power
to quash even a non-compoundable case of private nature, if continuing the
proceedings is found to be oppressive. While stifling a legitimate
prosecution is against public policy, if the proceedings in an offence of
private nature are found to be oppressive, power of quashing is exercised.

17. We have considered the background of the issue and also taken into
account the 243rd Report of the Law Commission dated 30th August, 2012, 140th
Report of the Rajya Sabha Committee on Petitions (September, 2011) and
earlier decisions of this Court. We are conscious of the object for which the
provision was brought into the statute. At the same time, violation of human
rights of innocent cannot be brushed aside. Certain safeguards against
uncalled for arrest or insensitive investigation have been addressed by this
Court. Still, the problem continues to a great extent.

18. To remedy the situation, we are of the view that involvement of
civil society in the aid of administration of justice can be one of the
steps, apart from the investigating officers and the concerned trial courts
being sensitized. It is also necessary to facilitate closure of proceedings
where a genuine settlement has been reached instead of parties being required
to move High Court only for that purpose.

19. Thus, after careful consideration of the whole issue, we consider
it fit to give following directions :-

i) (a) In every district one or more Family Welfare Committees be
constituted by the District Legal Services Authorities preferably comprising
of three members. The constitution and working of such committees may be
reviewed from time to time and at least once in a year by the District and
Sessions Judge of the district who is also the Chairman of the District Legal
Services Authority.

(b) The Committees may be constituted out of para legal volunteers/social
workers/retired persons/wives of working officers/other citizens who may be
found suitable and willing.

(c) The Committee members will not be called as witnesses.(d) Every complaint
under Section 498A received by the police or the Magistrate be referred to
and looked into by such committee. Such committee may have interaction with
the parties personally or by means of telephone or any other mode of
communication including electronic communication.

(e) Report of such committee be given to the Authority by whom the complaint
is referred to it latest within one month from the date of receipt of
complaint.

(f) The committee may give its brief report about the factual aspects and its
opinion in the matter.

(g) Till report of the committee is received, no arrest should normally be
effected.

(h) The report may be then considered by the Investigating Officer or the
Magistrate on its own merit.

(i) Members of the committee may be given such basic minimum training as may
be considered necessary by the Legal Services Authority from time to time.

(j) The Members of the committee may be given such honorarium as may be
considered viable.

(k) It will be open to the District and Sessions Judge to utilize the cost
fund wherever considered necessary and proper.

ii) Complaints under Section 498A and other connected offences may be
investigated only by a designated Investigating Officer of the area. Such
designations may be made within one month from today. Such designated officer
may be required to undergo training for such duration (not less than one
week) as may be considered appropriate. The training may be completed within
four months from today;

iii) In cases where a settlement is reached, it will be open to the
District and Sessions Judge or any other senior Judicial Officer nominated by
him in the district to dispose of the proceedings including closing of the
criminal case if dispute primarily relates to matrimonial discord;

iv) If a bail application is filed with at least one clear day?s notice
to the Public Prosecutor/complainant, the same may be decided as far as
possible on the same day. Recovery of disputed dowry items may not by itself
be a ground for denial of bail if maintenance or other rights of wife/minor
children can otherwise be protected. Needless to say that in dealing with
bail matters, individual roles, prima facie truth of the allegations,
requirement of further arrest/ custody and interest of justice must be
carefully weighed;

v) In respect of persons ordinarily residing out of India impounding of
passports or issuance of Red Corner Notice should not be a routine;

vi) It will be open to the District Judge or a designated senior
judicial officer nominated by the District Judge to club all connected cases
between the parties arising out of matrimonial disputes so that a holistic
view is taken by the Court to whom all such cases are entrusted; and

vii) Personal appearance of all family members and particularly
outstation members may not be required and the trial court ought to grant
exemption from personal appearance or permit appearance by video conferencing
without adversely affecting progress of the trial.

viii) These directions will not apply to the offences involving
tangible physical injuries or death.

17.A reading for the above said judgments makes it clear as to how the
in-laws/close relatives of the husband are roped in criminal complaints and
thereby the entire dispute unnecessarily gets aggravated and reaches a
situation where it becomes totally impossible for the parties to come
together. In the present case, this court does not find any ground in the
complaint, to sustain the same as against the petitioners. This court finds
that the continuation of the complaint against the petitioners will only
cause injustice to the petitioners. The respondent, who is the wife had
certain grievance against the petitioners for not taking any serious steps to
make the husband live with her. That by itself is not a ground to rope in the
in-laws/close relatives as accused in a criminal complaint. This Court finds
that this case falls under the guidelines of the Bajanlal Case.

18. Accordingly, this Criminal Original Petition is allowed and the
proceedings are quashed, insofar as the petitioners are concerned. It is made
clear that none of the finding in this Criminal Original Petition will have
any bearing on the Court below when considering the complaint against the
husband and A6. The C.C is of the year 2014. Therefore, the learned Judicial
Magistrate No.II, Nagercoil is directed to proceeded further with the
complaint insofar as A1 and A6 are concerned and dispose of the same within a
period of four months from the date of receipt of a copy of this order.
Consequently, connected miscellaneous petitions are closed.

To

1.The Judicial Magistrate II, Nagercoil.

2.The Additional Public Prosecutor,
Madurai Bench of Madras High Court,
Madurai.

.

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